Robert Murdoch

Robert Murdoch

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The Problems with Wills

Given that so many people equate the concept of estate planning with a will, it’s really kind of surprising how many problems wills really create. Especially in view of how many better ways there are to plan your estate. Consider:

A. Wills are not private.

While some may argue that privacy is a thing of the past, in reality there are things we would like to keep private. The concept “that some things are none of anyone else’s business” has not disappeared entirely. And few things are more likely to trigger that response than the subject of what we own, and who, when we leave this world we want to have it. All that goes out the window with a will. Why? Because when you die, your personal representative (executor) must admit your will to probate and it then becomes public record. That’s right. Anybody nosy enough to go to the courthouse can read that you want to leave your comic book collection to your nephew, or that your cut cousin Jethro out completely. These and countless other aspects of your private life become open to the public as soon as a will is admitted into probate.

B. Probate involves expense.

As with most other things, probating an estate is not free. When an estate is opened in the probate court (or whatever it may be called where you are) fees are immediately due. There are of course always filing fees. In addition most states require that the application to be appointed personal representative be published. The reason is well intended. It provides notice so that anyone who might want to contest the appointment can come forward. But it is nevertheless an expense that someone must pay. The court may or may not require that the person seeking appointment post a bond. Even though this is not always required, it can be a substantial expense. Depending on what state you are in, and the complexity of the estate, it may be necessary to hire a lawyer to handle the estate. Obviously that is not going to be cheap. And these are expenses that will be incurred if things go smoothly. Just think about how much can be spent of cousin Jethro decides to contest the will!

C. Wills are inflexible or outdated.

In your will you devised your comic book collection to your nephew. Of course that was ten years ago and you sold the collection five years ago. What happens to nephew? Is he just out of luck? Should he get something else from the estate to make up for the comic book collection being gone? The manner in which wills are drafted potentially makes them very unwieldy….. to the point that an outdated will can actually created problems that would not even exist if a person died without any will whatsoever.

D. Probate is aggravating and burdensome.

The last thing someone needs or wants when they have lost a loved one is a lot of legal hassle, red tape and aggravation. The complexity of the probate process varies from state to state and from estate to estate, but it is always, to some extent a pain! Forms and petitions must be completed. Inventories must be filed. Accountings have to be completed. If things are not completed on time, fines may be imposed. All of this not only comes at a difficult time for family of the deceased, but it is also, completely unnecessary.

E. Wills are not a good way to deal with end of life issues.

We frequently see questions about will provisions that deal with things like burial, cremation, leaving a body to science, etc. A will just doesn’t work for this kind of thing. First, when someone dies, it is seldom that a will is immediately consulted. Family members are busy grieving and making arrangements. A will is something that they may be aware of, but elect to deal with at a later time. If there is a will, it may not even be readily available. Many people put wills in safety deposit boxes. Gaining access upon death takes time. Bottom line, whatever is going to happen, however a decedent’s body is going to be disposed of will usually happen long before anyone looks at a will. So it’s kind of pointless to put things like that in a will. It’s just not a good way to address those issues.

And the important thing is that none of these issues and problems are in any way necessary. They are all easily avoidable. There are ways to handle your estate:
– in privacy
– that are not expensive
– do not involve a probate court looking over your shoulder
– that are much more easily managed and controlled

Next, I’ll discuss some much better alternatives to the old-fashioned last will and testament!!

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